Judicial vacancies slow judicial system

Perhaps no one can appreciate the importance of quick access to our federal courts more than death-row inmate Max Soffar. By the time the Fifth Circuit Court of Appeals rules on his habeas petition in support of his claim of innocence, he might have already died of liver cancer. The fact that the Fifth Circuit, which has jurisdiction to hear appeals from the federal district courts in Texas, has had two vacancies for the past 18 months will not help him either. The first vacancy opened three years ago, in August 2012, and the second in December 2013. No other circuit court in the country has more vacancies than the Fifth.

Unfortunately, Texas Senators John Cornyn and Ted Cruz have consistently opposed potential nominations of qualified district judges. And though it was Republicans who originally recommended these judges for the vacant positions, Sens. Cornyn and Cruz have shown little interest in recommending nominees to the White House to fill an additional seven district court vacancies. The Judicial Conference of the United States, headed by Chief Justice John Roberts, has marked the two circuit vacancies, and five of the seven district court vacancies, as a Judicial Emergency. This designation implies that the courts’ current caseload is both excessive and unmanageable. Even if these seats are filled tomorrow, the Conference has asked Congress to add eight new judgeships for the Texas district courts.

What’s the hold up, you ask? Political partisanship and a reluctance to promote Obama appointees to federal courts is responsible. Historically, due to the time required to identify, nominate, and confirm judicial replacements, many federal judges announce their plan to step down up to a year in advance, giving Senators plenty of time to recommend their replacements. Unfortunately, in almost all cases, our Senators have wasted many months after the vacancy to even begin the replacement process. For instance, more than a year in advance of his January 2014 vacancy, Judge Robert Junell of the Western District of Texas announced on the US Courts website that he would be taking a senior status .. Yet, Sens. Cornyn and Cruz waited more than a year, until April 2015, to begin their search process. This was not the approach taken under previous administrations. While George W. Bush was president, and after Cornyn was elected, five district court judges gave notices to vacate their seats well in advance of the official vacancy. Cornyn and Kay Bailey Hutchinson, Texas’ sitting senators at the time, made recommendations to Bush well before the vacancy became current. So are we to assume that, yet again, Sens. Cornyn and Cruz are dithering at the expense of Texans?

Having fully staffed courts are imperative for the innocent inmates challenging their wrongful conviction, the victims and their families who have waited years for closure, and the injured plaintiffs and consumers seeking a redress. In contrast, a deliberately sluggish federal court system with a crushing backlog of cases provides golden opportunities for large corporations to manipulate the system, using the painfully slow litigation process to force parties into hasty settlements. .
Texans deserve their day in court, but as long as Sens. Cornyn and Cruz continue to dilly-dally, ignoring their constitutional duty of sending nominations to the President, Texans will suffer at the expense of a bureaucratic logjam.

A version of this commentary was published in the San Antonio-Express News on July 6, 2015. The published version can be accessed here and here.